Representation
at work
booklet
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Contents
1
About this guide
Glossary of terms
2
3
2
What is representation?
The benefits of employee representation
5
7
3
Who are employee representatives?
What kinds of employee representatives are there?
How are employee representatives elected?
10
11
12
4
What makes for effective representation?
Qualities of employee representatives
What do managers need to do?
Training and self-development
13
13
14
15
5
How does representation work in practice?
Representation of individuals on personal issues
Communication and consultation on issues such as health and
safety, TUPE and redundancies
Resolving problems through joint working groups
Representation in collective bargaining
16
16
6
Appendix 1
Legal rights and responsibilities
31
31
7
Appendix 2
Important changes to making Employment Tribunal claims
34
34
Notes
36
19
23
25

1
About this guide
Most people assume that they know
what representation means and how
it works in practice, but how many of
us have experience of acting as an
employee representative or working
closely with them?
●●
the issues employee
representatives get involved in at
work – such as individual
disciplinary and grievance hearings
and collective bargaining on pay
and conditions
For example, did you know:
●●
the skills they need to do their job
– ranging from listening skills to
negotiating skills
●●
the rights they have under law –
such as the right to reasonable
time off to do their jobs
●●
the mechanics of how they do
their job – in other words, what
kind of meetings they attend and
how consultation and negotiation
work in practice.
●●
●●
●●
there are nine different kinds of
employee representatives (some
union and some non-union) –
including representatives for health
and safety, consultation, pensions,
collective bargaining and union
learning?
representation can mean anything
from communicating basic
information to employees through
to more complex negotiation over
collective bargaining?
the most common arrangement
for consulting employee
representatives is the employee
forum – also known as a joint
consultative committee, staff
council or works council?
This guide is aimed at employers,
employee representatives and
employees. It explains how
employers and employee
representatives can get the most out
of working with each other and
focuses on four areas:
2
REPRESENTATION AT WORK
Small firms don’t need elaborate
systems of representation, but it is
good practice for firms of all sizes to
have an effective way of informing
and consulting their employees.
More specialist advice on the rights
to time off, training and facilities can
be found in the Acas guides Trade
union representation in the workplace
and Non-union representation in the
workplace, available at www.acas.
org.uk/publications.
1
Glossary of terms
Throughout this guide we will be using the following terms:
Communication
Employee communications means the provision and
exchange of information and instructions which enable
an organisation to function efficiently and employees to
be properly informed about developments. It covers:
●●
the information to be provided
●●
the channels along which it passes
●●
the way it is communicated.
Consultation
Consultation is the process by which management and
employees or their representatives jointly examine and
discuss issues of mutual concern. It involves managers
actively seeking and then taking account of the views of
employees, either directly or through their
representatives, before making a decision. Meaningful
consultation depends on those being consulted having
adequate information and time to consider it, but it is
important to remember that merely providing information
does not constitute consultation.
Negotiation
Negotiation usually takes the form of a dialogue
between employers and employee representatives
aimed at producing an agreement. Negotiation is often
associated with resolving disputes or reaching
agreements on collective workplace issues.
Employee
forums
Employee forums are permanent bodies set up so that
representatives of employers can consult with
representatives of employees in order to listen to their
views and take them into account when making
decisions.
The most common arrangement for consulting
employee representatives on workplace issues is the
employee forum. They are also known as joint
consultative committees, staff councils and works
councils.
Glossary of terms
3
Collective
bargaining
Collective bargaining is a process whereby an employer
and a recognised trade union or unions negotiate on
pay and other terms and conditions of employment.
This negotiation is carried out on behalf of a group of
workers defined as ‘the bargaining unit’.
Trade unions
Trade unions are organisations of workers which aim to
maintain and improve the terms and conditions of work
of their members. They try to achieve this mainly
through collective bargaining with employers and
through the provision of benefits to their members.
Traditionally trade unions drew their members from
workers in specific trades or industries but many unions
have extended membership to other groups of workers
either through amalgamation or by widening their
membership base. The 2011 Employment Relations
Study found that 46% of employees were in workplaces
with a recognised union.*
Recognition
A trade union is said to be recognised when an
employer agrees to negotiate with it on pay and working
conditions on behalf of a particular group of workers.
Once a union becomes recognised, the employer must
comply with certain legal duties. The most common way
a union can gain recognition for collective bargaining
purposes is by the employer simply agreeing to
recognise it voluntarily. In practice this means the union
becomes recognised by the employer without using any
legal procedures.
If an employer and trade union find they are unable to
come to a voluntary recognition agreement, a trade
union can make an application for statutory recognition.
This only applies where the employer, together with any
associated employers, employs 21 or more workers.
* The 2011 Workplace Employment Relations Study (WERS) First Findings
(workplaces with five employees or more), January 2013
4
REPRESENTATION AT WORK
What is
1
representation?
Representation at work is the system
by which individual employees –
either union or non-union
representatives – are given the right
to speak on behalf of their colleagues
on important issues in the workplace.
Representation is a way of
formalising the employer-employee
relationship by establishing channels
for people at work to:
●●
share information
●●
communicate
●●
consult
●●
negotiate
●●
protect their employment rights
●●
build positive relationships based
on trust and co-operation.
2
Representatives are usually elected
and they have many rights which are
protected by law – such as the right
to training and reasonable time off to
carry out their duties their duties see
the Acas guides Trade union
representation in the workplace and
Non-union representation in the
workplace at
www.acas.org.uk/publications.
WHAT IS REPRESENTATION?
5
Representation is most
commonly used for:
The law says:
Individual issues, where an
employer and employee need to
discuss often sensitive issues. For
example, an employee may have a
complaint with their manager about
bullying or discrimination, or a
manager may feel an employee’s
performance or conduct is falling
below the required standard.
Workers have a statutory right to be
accompanied by a fellow worker or
trade union official at disciplinary or
grievance hearings.
Group issues, when employers
need to communicate and consult
with the whole workforce. This is
often done in employee forums –
also known as joint consultative
committees or works councils.
Employers are required to consult
employee representatives on many
issues including:
– collective redundancies
– health and safety
– transfer of undertakings.
6
Collective bargaining, related to the
terms and conditions of
employment, where negotiation
often takes place between senior
management and union
representatives on an ongoing
basis.
Recognised trade unions have the
legal right to bargain about pay,
hours and holidays.
Change issues, for example where
new products have to be developed
or new equipment introduced as a
result of economic circumstances.
The Information and Consultation of
Employees (ICE) Regulations were
introduced on 6 April 2005 and give
all employees of businesses with 50
or more employees the right to
request an information and
consultation agreement.
REPRESENTATION AT WORK
Most agreements by employers to
recognise trade unions for collective
bargaining are entirely voluntary.
The benefits of employee
representation
●●
The key benefit of representation is
that it enables employers and
employees to communicate, consult
and negotiate effectively with each
other. As the diagram shows,
involving employee representatives
can:
●●
give employees a voice: having
representatives can encourage
employees to voice their views
frankly and freely. In the absence
of representatives to speak for
them, employees may be reluctant
to express their true opinions
directly for fear that managers
might interpret their comments as
criticism and therefore hold this
against them
●●
nurture good employment
relations: employee
representatives can act as a useful
sounding board for management
on plans they have for the
organisation and as a barometer
of the level of trust and
cooperation between employees
and managers. Representatives
can be particularly effective
identifying grievances in the
workplace and helping to diffuse
potential conflict at an early stage
make negotiations more effective:
trained representatives can make
well thought out recommendations
to collective negotiating bodies
that have the backing of the
employees they represent and
reflect the wider interests of the
company
By the book
consultation
Us and them
2
Joint decision
making
Low engagement
High engagement
Trust and
co-operation
The relationship between
representatives and management
Representation: the barometer of employment relations
WHAT IS REPRESENTATION?
7
●●
drive employee engagement: the
recent Macleod Review found that
one of the main drivers of
employee engagement is
“employees feeling they are able
to voice their ideas and be listened
to, both about how they do their
job and in decision-making”
●●
promote employee health and
wellbeing: research by the Health
and Safety Executive has shown
that one of the main causes of
stress at work is a lack of control
over how employees do their job.
Having a say in the decisionmaking process is especially
important during periods of
instability or rapid change. See the
Acas guide Health, work and
wellbeing at www.acas.org.uk/
publications for further advice
●●
develop skills: employee
representatives and managers can
develop useful skills, such as in
negotiating and handling group
dynamics, particularly if they
receive the right level of training.
“Employee engagement is a
combination of commitment to the
organisation and its values plus a
willingness to help out colleagues”
The Chartered Institute of
Personnel Development
●●
●●
8
improve change management:
employee representatives can play
an important role in developing
joint decision-making. Acas
advisers often work with
organisations to help run
workshops based on solving
problems during periods of
change. See the Acas guide How
to manage change at
www.acas.org.uk/publications for
further advice
raise creativity: effective
representation can help employers
tap into the expertise and creativity
of their employees. The decisions
you make are also going to be
much more welcome if employees
feel they have had a genuine
chance to have their views heard
REPRESENTATION AT WORK
Representation does not mean that
employers and managers should not
talk directly with individual employees
or consult with them. This one-toone dialogue, particularly between
line managers and their staff, is very
important in motivating and engaging
employees.
Ideally, line managers will have a
good rapport with their staff and
know how they are feeling and the
issues that most concern them (for
further information see the Acas
guide Front line managers at
www.acas.org.uk/publications).
Managers should be careful that this
direct involvement with employees
does not undermine any formal
negotiating procedures that might be
in place. For example, a manager
should not report to an established
negotiating forum that “I’ve already
sorted this issue out with the staff”.
There’s no harm in sounding out
opinions but stick to the agreed
decision-making process.
Chance to
speak
openly and
freely
2
Better health
and sense of
wellbeing
Effective
communication,
Higher rate of
early conflict
resolution
Representation
Higher
levels of
employee
engagement
consultation and
negotiation
Better
decision
making and
collective
bargaining
More
effective
management
of change
WHAT IS REPRESENTATION?
9
Who are employee
representatives?
Employees can be represented by:
●●
trade union representatives where
there is a recognised trade union.
Many employers reach
agreements with their workforce to
recognise trade unions, and Acas
can help organisations with
voluntary recognition
arrangements. If a voluntary
agreement cannot be reached a
trade union may invoke the
statutory recognition procedure in
organisations with 21 or more
employees (see Appendix 1 for
more information)
●●
non-union representatives – who
make up approximately half of the
representatives in the UK and
whose role tends to be focused on
consultation
●●
a mixture of union and non-union
representatives.
Many employers use a constituencybased approach to ensure
representatives reflect the individual
circumstances and structure of the
organisation. For example, if there
are 200 employees divided into five
major groups or units, each doing
different jobs, there may be a need
for a minimum of five representatives
– one for each group.
10
REPRESENTATION AT WORK
Representatives can be elected on
the basis of:
●●
occupational group or function
(eg production, warehouse, office)
●●
shift patterns (constituencies of
night and day shift workers, for
example)
●●
department, perhaps with one
representative per section
●●
geographical area.
Representatives should also reflect
the gender and race of your
workforce. This can help to promote
diversity and ensure equality of
opportunity for all your employees
(for further information see the Acas
guide Delivering equality and diversity
at www.acas.org.uk/publications).
What kind of employee representatives are there?
Type of representative
Rights
Union representatives appointed by an
independent union in workplaces where
the union is recognised for collective
bargaining purposes. These can also
include specialist representatives for:
Many of these union
representatives have legal rights
– for example, the right to paid
time off to carry out their duties
and training.
●●
union learning
●●
health and safety
●●
equality issues
●●
information and consultation
●●
pensions
●●
transfer of undertakings (TUPE)
●●
collective redundancy
●●
workforce agreements.
3
For a full list of these rights see
the Acas guides Trade union
representation in the workplace
and Non-union representation in
the workplace at
www.acas.org.uk/publications.
Non-union representatives include
specialist employee representatives for:
●●
employee safety
●●
information and consultation
●●
pensions
●●
transfer of undertakings (TUPE)
●●
collective redundancy
●●
workforce agreements.
WHO ARE EMPLOYEE REPRESENTATIVES?
11
How are employee
representatives elected?
The law does not state how many
representatives you must elect or the
exact process for choosing them.
However, when arranging to elect
employee representatives, it is good
practice to:
✓✓make sure that the election is fair
is unreasonably excluded from
standing for election
✓✓ensure that all affected employees
on the date of the election are
entitled to vote for employee
representatives
✓✓take all reasonable steps to enable
✓✓work out the number of
those voting do so in secret, and
the votes given at the election are
accurately counted.
✓✓determine the employee
Where there is a recognised trade
union, the election or nomination of
representatives will be organised by
the trade union concerned. For a list
of trade unions visit the TUC website
at www.tuc.org.uk.
representatives to be elected so
that there are enough
representatives to represent the
interests of all the affected
employees
representatives’ term of office so
that it is long enough to enable
relevant information to be given
and consultations to be completed
✓✓ensure that the candidates for
election as employee
representatives are affected
employees on the date of the
election
12
✓✓ensure that no affected employee
REPRESENTATION AT WORK
What makes for effective
representation?
Effective representation is dependant
upon:
1.the qualities of employee
representatives – including
communication and listening
skills and the ability to empathise
with colleagues
2. good management – whereby
employers develop strong
relationships with employee
representatives based on mutual
interests
In order to be effective in relating to
individual problems representatives
need to have:
●●
integrity – employees need to be
able to trust their representatives
and talk to them in confidence
about issues such as personal
illness, personality clashes and
bullying
●●
good communication skills – this
includes listening as well as
talking. At meetings it often means
being able to present arguments
concisely and in a measured way
●●
knowledge of the law – which
means keeping up-to-date with
the law on everything from equality
and discrimination to handling
redundancies.
3.ongoing training and selfdevelopment for representatives.
Qualities of employee
representatives
Representatives work very closely with
employees on often very personal and
sensitive issues. The latest Workplace
Employment Relations Survey
reported that two thirds of
representatives spent time on:
●●
disputes involving disciplinary and
grievance matters
●●
welfare issues: such as health
and safety, absence and staff
sickness and pay and employee
entitlements.
3
4
Representatives may also need to
get employees involved on issues
affecting wider groups in the
organisation, such as pay and terms
and conditions of employment. They
need to be known to their
constituents, share views and
information and be aware of the need
for confidentiality.
* See page 4 for details
WHAT MAKES FOR EFFECTIVE REPRESENTATION?
13
What do managers need to do?
Representatives can act as useful
sounding boards for managers who
want to canvas opinion on specific
ideas or gauge the mood of the
workforce. This kind of relationship
between managers and
representatives involves trust and
mutual confidence in each other’s
commitment to the interests of the
organisation and its employees.
Managers need to involve
representatives wherever possible in
wider business issues in order to
develop this trust. It is in their
interests to ensure that
representatives have:
●●
a genuine desire to see their
company do well
●●
an awareness of the commercial
environment, where appropriate
●●
an understanding of the bigger
picture – in terms of organisational
objectives and business plans.
In order to achieve these goals
managers should:
●●
14
provide relevant, timely information
to employees and representatives
on key workplace issues
●●
consult in good time
●●
explain reasons for decisions
●●
agree meaningful agendas at
meetings
REPRESENTATION AT WORK
●●
allow representatives sufficient
time and facilities.
Representatives and managers
should work out a written agreement
on the arrangements for time off,
training and facilities. This can help
avoid confusion and minimise
disputes – especially where a
permanent employee forum has
been set up.
The agreement should also agree
upon the number of representatives
and how they will be elected. For
more information see the Acas
guides Non-union representation in
the workplace and Trade Union
representation in the workplace
available at
www.acas.org.uk/publications.
Misunderstandings between
managers and employee
representatives can be caused by a
lack of awareness on the part of line
managers of the role employee
representatives play in helping
employees with individual rights’
issues. Training and involvement in
joint working groups (see p23) can
help overcome this barrier.
Trade union representatives
Trade unions provide training for
their own representatives. This is
often organised by the TUC – for
more information visit
www.unionlearn.org.uk.
Training and self-development
Representatives may need training to
help deal with:
●●
specific issues – such as health
and safety or TUPE
●●
detailed consultation, where
meetings can last for several
months and in-depth knowledge is
required on complex business
matters
Experience is not always enough on
its own. Employee representatives
also need to focus on their own
self-development to help them
become:
●●
●●
alternative dispute resolution
procedures – such as mediation
for dealing with individual
disciplinary and grievance issues
●●
negotiation in collective bargaining
●●
meetings: everything from writing
reports to presenting to groups of
managers.
Acas research has found that
“experience, training and legal
expertise” are the key building blocks
for effective representation. The Acas
report – Accompaniment and
representation in workplace discipline
and grievance – highlighted the link
between experience and the
willingness on behalf of union
representatives to deal with problems
on an informal basis.
assertive rather than passive or
aggressive. A confrontational
approach can often alienate
people before they have the
chance to even consider the
issues
●●
practical rather than ideological.
A good representative can often
point out the implications of an
employee’s course of action at a
grievance or disciplinary meeting.
This is often more helpful than
trying to establish ‘rights’ and
‘wrongs’
●●
confident rather than egotistical.
Workers want an employee
representative who will listen to
their views and represent these
fairly on their behalf. They do not
want representatives who go into
meetings to fight their own
personal battles or promote their
own positions.
WHAT MAKES FOR EFFECTIVE REPRESENTATION?
4
15
How does representation
workinpractice?
According to Reps in Action, a joint
publication by the Confederation of
British Industry, the Trades Union
Congress and the Department for
Business, Innovation and Skills, there
are approximately 200,000 workers
who act as lay union representatives.
These representatives have the right
to collective bargaining with
employers over issues such as pay,
hours and holidays.
Representation of individuals
on personal issues
At some time or other, most
employers have had to talk to an
employee about:
●●
disciplinary matters, for example,
if an employee is alleged to have
broken one of the company rules
covering absence, timekeeping,
misconduct, unsatisfactory
performance or the use of
organisational facilities
●●
grievance issues, for example, if
an employee has a problem about
their work, working conditions or
relationships with colleagues that
they wish their manager to resolve.
Along with non-union
representatives, they also help:
●●
individuals manage personal
issues, such as discipline and
grievances issues
●●
employers communicate and
consult with employees on issues
such as health and safety, transfer
of undertakings and redundancies
●●
16
resolve problems through joint
working parties on issues like
absence and change
management.
REPRESENTATION AT WORK
These interviews can be very
stressful for the manager and the
employee. The manager can be
tempted to brush over serious
underlying problems in an attempt to
get things ‘back to normal’ or they
might over-react in a manner that
exacerbates the problem.
Checklist for the statutory right to be accompanied:
✓✓Applies to all workers including those who perform work personally for
someone else, but are not genuinely self-employed
✓✓Applies to certain disciplinary and grievance hearings which may result in
some disciplinary action or where the grievance is about the employer’s
duty to the worker
✓✓The worker must make a request to be accompanied to the employer
and the request must be reasonable
✓✓The worker may choose to be accompanied by a co-worker or a trade
union official (full-time or lay)
✓✓Where the chosen companion cannot attend on the date proposed the
5
worker can offer an alternative time and date which is reasonable and
within five working days – beginning with the first working day after the
day proposed by the employer
✓✓The accompanying person can address the hearing and confer with the
worker, but not answer questions on behalf of the worker unless this is
agreed by management
✓✓Refusing to allow a worker to be accompanied could lead to a finding of
‘automatically unfair’ dismissal if the worker is dismissed as a result of
the disciplinary hearing and makes a claim of unfair dismissal to an
employment tribunal. Refer to Appendix 2 which outlines important
changes to making Employment tribunal claims.
Employees may be anxious about
‘being in trouble’ and nervous about
expressing their opinions in front of
more senior staff.
Representatives can help to take
some of the emotion out of these
encounters by acting as an
intermediary. They can also help
maintain ongoing relationships that
might otherwise be damaged by
conversations that can sometimes
turn into confrontations.
Many organisations recognise the
benefits of employee representation
and provide rights over and above
the legal minimum (see table above).
They allow workers to be
accompanied by a person of their
choice at interviews, meetings or
hearings on a range of disciplinary,
grievance or other issues.
HOW DOES REPRESENTATION WORK IN PRACTICE?
17
But what do these representatives,
friends or work colleagues do at the
meetings and how do they help
resolve disputes?
Acas research2 has shown that
workplace companions can offer a
useful source of support to
employees in disciplinary and
grievance settings. Even in a very
small firm where everyone knows
one another and the accompanying
employee has no training there can
be subtle, but significant benefits.
The report describes one companion
who:
“…attempted to advise her colleague
before the meeting, but remained
silent during the meeting itself.
However she had some experience
of HR issues from a previous job and
therefore was able to explain to the
employee that she was not being
sacked and that if she improved her
behaviour she would keep her job.
The companion felt that this
persuaded the employee against
resigning following the disciplinary.”
This example shows that when
emotions are running high people
can often misinterpret what is going
on in a meeting. The accompanying
employee was able to persuade the
employee not to leave and give her a
more realistic, neutral assessment of
the situation.
18
REPRESENTATION AT WORK
Trade union representatives can
provide:
✓✓early warning of potential
problems
✓✓a communication channel
between managers and
employees
✓✓ongoing monitoring of
employees involved in discipline
and grievance issues
✓✓effective advocacy of individual
cases to ensure fairness
✓✓a way of managing employee
expectations
✓✓good awareness of legal and
procedural issues.
Accompaniment and
representation in workplace
discipline and grievance, Acas
Research paper
The research also found that trade
union representatives offer even
greater help, often playing a positive
role in tackling disputes in the
informal stage. A line manager
describes the impact a union
representative can have:
“I’ve had first-hand experience of
delicate issues of bullying going off in
a department that the people were
not dealing with, but they spoke to
the union rep, the union rep comes
to see me as line manager
responsible for this area at the time,
saying, ‘This is bubbling up, and so
and so is getting upset about it.’
Then you can get engaged and avoid
what would’ve been some serious
allegations and issues.”
(Operational manager)
In this example, the union
representative is proving the maxim
that ‘prevention is better than cure’
and offering the line manager early
warning of potential problems.
Bullying and harassment are not
uncommon in workplaces and can
lead to stress and mental health
problems as well as high employee
turnover and employment tribunal
claims. If you are (or expect to be)
affected by such an issue, see
Appendix 2 on important changes to
making a tribunal claim.
Communication and
consultation on issues such as
health and safety, TUPE and
redundancies
Employers are legally obliged to
consult with employees on a range of
issues, including transfer of
undertakings, health and safety and
planned redundancies. Employers
and employee representatives
commonly set up permanent
consultative bodies – often called
employee forums, joint consultative
committees or work councils – for
this purpose.
5
The remit for these groups – in terms
of what they discuss and how
decisions are made – varies from one
organisation to the next. Some
organisations consult on those issues
required by law, others widen the
group’s responsibility to cover
anything from working conditions to
training and equal opportunities.
HOW DOES REPRESENTATION WORK IN PRACTICE?
19
How to get the best from employee forums
20
Purpose
●●
A forum’s terms of reference should explain its
objectives – which often include a commitment to
promoting cooperation and mutual understanding
through consultation. Specific objectives can be
linked to the organisation’s business plan, mission or
core values.
Representation
●●
Worker representatives on councils should be elected
by the employees they will represent. Where an
organisation has an established trade union structure
one or more union representatives may sit on the
council as of right or, alternatively, a separate election
could be run and union representatives may still be
candidates for those positions.
●●
Workers may be elected on a constituency basis,
irrespective of their trade union role or membership.
●●
It is usual for management to nominate management
representatives.
Constitution
●●
The constitution should lay down the rules and
procedures of the employee forum, including terms of
reference, period of office, election of members,
facilities for members, rules of confidentiality etc.
Members
●●
The number of representatives on a forum is typically
between 5 and 15 but this will depend on the size
and make-up of your organisation.
Chair
●●
A good chair allows everyone to contribute to
discussions but does not allow meetings to drift from
the subject. In some organisations the role of chair
alternates between suitable management and
employee representatives.
Training
●●
Training in interpersonal and group dynamics along
with briefing on any relevant legislation, can help
groups be much more effective.
REPRESENTATION AT WORK
How to get the best from employee forums
Time off and
facilities
●●
Set out the arrangements for time off (with pay) and
facilities to be provided (such as use of phone/
computer/stationery) etc.
Meetings
●●
Four meetings a year with the provision for ad hoc
meetings may be reasonable but this will vary.
Subjects to
discuss
●●
Some issues commonly discussed include: working
conditions, company prospects and strategies, new
ways of working, training, health and safety, equal
opportunities, staff levels and welfare.
Agenda
●●
If meetings take longer than two hours, concentration
and quality of debate may suffer.
Secretary
●●
A secretary will need reasonable time off, facilities and
training to arrange meetings, and take and distribute
minutes. In larger organisations there may be
management and employee side secretaries who
liaise about administration matters such as agendas.
Many organisations have specialist
representatives to represent
employees on:
●●
health and safety
●●
pensions
●●
european consultative bodies.
5
Training can be invaluable in making
the consultation process effective.
The following case study shows how
training can improve communication
between managers and
representatives and help the
decision-making process.
The legal requirements to consult on
each of these issues are set out in
Appendix, p31. Most of these
specialist representatives have the
legal right to paid time off to carry out
their duties. Some also have the right
to paid time off for training and the
provision of facilities to help them
perform their duties.
HOW DOES REPRESENTATION WORK IN PRACTICE?
21
Case study: How Vodafone used training to make consultation over
planned redundancies more effective
The background
In March 2009 it was announced that around 400 people were either to be
made redundant from Vodafone’s Newbury headquarters or re-deployed
elsewhere in the business, as part of company-wide restructuring and cost
savings. At the time, Vodafone employed around 10,500 people in the UK
and an estimated 70,000 world-wide.
Designing the consultation process
Vodafone had an elected employee consultative council (established in
2004) which included 16 employees located across the UK, and met
quarterly to discuss the business direction of Vodafone. However, when
facing redundancies, the company opted to hold an election to appoint
employee representatives to participate in management/employee
consultation specifically for the period of the redundancy.
The manager believed that creating a ‘bespoke’ consultation process
ensured that:
●●
the process was more pertinent to the immediate needs of those facing
redundancies
●●
there was a ‘better ratio of representation’ of representatives to
employees than would be possible if the standing employee council had
been used. For instance, in the case of the March 2009 redundancy
situation, 13 ‘directly impacted’ employees were elected to represent
1,000 employees.
continued on page 23
22
REPRESENTATION AT WORK
Case study continued from page 22
Case study: How Vodafone used training to make consultation over
planned redundancies more effective
Training employee representatives on redundancy
Vodafone arranged training sessions for all those involved in the consultation
on the proposed redundancies. Following the training, run by Acas, there was:
●●
more constructive dialogue between managers and employee
representatives
●●
more helpful input from employee representatives
●●
increased communication between employees and line managers.
Consulting on redundancies is a legal requirement but the right training can
make the consultation exercise much more effective. As the Vodafone
manager explained:
5
“Clearly you’ve got to comply with the law, but what you actually really want
to achieve is an employee population that you can take with you on the
journey of why you’re doing something, and explore with them solutions
that have a buy-in from the employee perspective, and can get a buy-in
from the employer perspective, to actually improve things for the people
that we’re working with.”
Resolving problems through
joint working groups
What are joint working groups?
Joint working groups comprise
employers and employee
representatives who meet to tackle
and solve problems together. These
groups are similar in make-up to
works councils but they are usually
formed to deal with specific issues
affecting the organisation, such as a
high rate of employee turnover or
problems with the pay system.
The emphasis is very much on joint
working – with managers and
representatives working together to
understand issues and overcome
common problems in a nonconfrontational way.
Joint working groups can:
✓✓secure greater commitment to
recommendations because
worker representatives have
been involved in the decisionmaking process
✓✓emphasise dialogue, not conflict,
by developing solutions which
are acceptable to both sides
✓✓utilise the skills and knowledge
of employees
✓✓improve relationships and
attitudes.
HOW DOES REPRESENTATION WORK IN PRACTICE?
23
How can joint working groups make
effective decisions?
Joint working groups often make
recommendations for further action.
Where there is a recognised trade
union these might form the basis of
negotiation in collective bargaining.
Where there is no recognised trade
union, the recommendations may be
presented to management for
discussion.
In most cases it is best to arrive at
these recommendations through
group consensus – as opposed to
decisions reached through majority
voting or by the group leader alone.
Consensus decision-making is where
all group members agree on a single
outcome – after they’ve had chance
to air their views and discuss the
issues. A group reaches consensus
when all members agree on a single
way forward and each individual can
honestly say:
●●
●●
I believe that you understand my
point of view and I understand
yours
whether or not I prefer this
decision, I support it because it
was reached fairly and openly and
it is the best decision for us at this
time.
How it works: joint working
groups
To make effective decisions
employee representatives should:
✓✓have open access to
information – this encourages
cooperation, efficiency and
teamwork
✓✓generate new and innovative
solutions rather than falling
back on what the group has
done in the past
✓✓test the proposed course
against the yardstick of their
aim or objective
✓✓assess the consequences of
making particular decisions
✓✓play devil’s advocate by
challenging assumptions and
promoting a thorough appraisal
of any suggestions
✓✓divide complex problems – for
example, start with ‘what?’ to
do and then move on to ‘how?’
and ‘when?’
✓✓reconsider decisions by
ongoing review of relevant
information
✓✓feel ownership of and
commitment to the decisions
that are made
✓✓be patient – developing trust
can take time.
24
REPRESENTATION AT WORK
Consensus is not an easy option, or
a way of avoiding conflict. In this kind
of decision-making:
●●
effective groups generate high
quality ideas by accepting conflict
and exploring differences of
opinion amongst group members
●●
groups should not feel a need to
establish a common view quickly,
using simple methods such as
majority voting or bargaining
●●
everyone shares information
openly and listens rather than
always fighting their own corner.
Some of the techniques joint working
groups use to resolve problems –
such as problem-solving cycles,
brainstorming and cause and effect
analysis – can be found in the Acas
guide How to manage change
available at www.acas.org.uk/
publications.
Representation in collective
bargaining
Most agreements by employers to
recognise trade unions for collective
bargaining are entirely voluntary but
independent trade unions in
organisations employing more than
20 employees have a statutory right
to claim recognition. For more
information visit the Central
Arbitration Committee website at
www.cac.gov.uk. Details of the legal
rights of trade unions is given at
Appendix, p32.
5
Pay is perhaps the most emotive
issue to be discussed by employers
and unions and is the single biggest
cause of workplace disputes –
accounting for almost half of all Acas
collective conciliation cases in
2012/13. The way collective
bargaining works will differ in each
organisation but some of the basic
steps are set out overleaf.
HOW DOES REPRESENTATION WORK IN PRACTICE?
25
Example: How collective bargaining works – annual pay award
The background
– the nature
of the
employer-union
relationship
Collective bargaining is more likely to go well and avoid
industrial action if the employer and union trust each
other and can work together collaboratively.
Organisations with genuine partnership agreements in
place (see p29) will talk to each other openly and share
information. Ideally, the annual pay negotiations should
throw up no surprises.
The offer/the
claim
Usually the trade union will submit a pay claim –
following discussions between employee
representatives and their constituents – and the
management will respond with an offer. This offer or
claim might be triggered by a certain date set out in the
negotiating agreement. Hopefully, the regular meetings
between managers and union representatives have
anticipated the nature of the offer or claim.
The role of the
union
representative
The union reps will talk to union members to gauge
opinion on the offer.
Experienced union reps with the right training and
personal skills will be able to explain the offer to
members, deal with unreasonable criticism and ensure
members are being realistic about the offer.
An employer needs to allow the union reps enough
time to talk to their members and consult with them.
Line managers are sometimes unaware of the rights of
union reps and can often benefit from training.
Negotiation
26
Management and union reps will often question and
probe each other to develop possible options for a way
forward. This may focus on the parties’ real needs and
interests – as opposed to their stated positions. Both
sides usually have an ‘area for movement’ where
compromise can be reached.
REPRESENTATION AT WORK
Recommendation
and ballot
The union reps will go back to the employer with a ‘yes’
or ‘no’. If the answer is ‘no’ the employer might say
‘what do your members want?’ Some sections of the
workforce might want different things in terms of pay
and conditions. They may then trade items to try and
reach an agreement they both find acceptable. Once
parties feel that no further change is possible through
negotiation the members are then balloted by the
union. The union reps usually make a recommendation
for members to accept or reject the offer.
Involvement of
the Full Time
Union Official
(FTO)
If the members reject the offer, the next part of the
collective bargaining procedure might involve calling in
the union’s full time official (FTO). The FTO can offer a
reality check – for example, they might say ‘do you
know what kind of offers other people are getting, this
isn’t too bad’. They might also use their own
experience to help negotiate slightly different terms.
Dispute
resolution by
Acas
Some organisations have a stage in their collective
bargaining agreement that states that if an agreement
cannot be reached it should be referred to a third party.
Acas offers collective conciliation in these cases. In
2012-13 Acas received 871 requests for collective
conciliation. In 93% of cases, Acas was able to assist the
parties reach an agreement in their dispute or make
sufficient progress that it was possible for them to reach
agreement later in direct negotiations.
5
Organisations can contact Acas even if it’s not part of their
collective bargaining procedure. Acas will often try and
seek ways of preventing future conflict – for example, by
developing partnership agreements – see the Acas guide
Managing conflict at work at www.acas.org.uk/publications
Collective bargaining agreements do
not normally establish legal relations
between an employer and trade
union, but those parts of the
agreement that affect terms and
conditions of employment can
become part of individual contracts.
It is important to remember that
collective agreements usually:
●●
apply to all employees within the
specified bargaining group,
irrespective of whether individuals
are union members or not
HOW DOES REPRESENTATION WORK IN PRACTICE?
27
●●
include recognition agreements
–– disclosure of information
●●
work best if they are in writing.
–– consultation arrangements,
including the scope for regular
meetings, confirmation that the
trade union will be consulted in
the event of a statutory
obligation to do so, for example
in TUPE and collective
redundancy situations
What are the principles for
collective bargaining?
To enable collective bargaining to
operate effectively you need an
agreement on:
✓✓Recognition – this will include:
–– a statement of management
and unions’ common objectives
as well as their different roles
and responsibilities
–– grades, categories, department
etc that the union or unions
represent (bargaining units)
–– number of trade union
representatives
–– policy on trade union
membership
–– facilities for trade union
representatives
–– accreditation for union
representatives.
✓✓Procedural arrangements – this
will set down details of:
–– payment of union contributions
from wages (check-off) – where
appropriate
–– time off for trade union duties
and activities (see Acas Code of
Practice 3 Time off for trade
union duties and activities)
28
REPRESENTATION AT WORK
–– normal negotiating
arrangements, including how
and when issues can be raised
–– who will represent the employer
and the trade union in
negotiations. It is important to
indicate at what stage a fulltime trade union official will be
involved
–– a disputes resolution procedure,
identifying the number of
stages, the scope for
intervention by more senior
trade union and employer
representatives and whether
disputes can be referred to third
parties (eg Acas)
–– ‘status quo’ or ‘standstill’
arrangements designed to allow
the organisation to work
normally while attempts are
made to resolve disputes
–– handling redundancies
–– how agreements can be varied
or terminated.
✓✓Issues – you might want to
include a list of the things suitable
for collective bargaining, but this
is optional
✓✓Type of bargaining – where two or
more unions are recognised, will
all unions involved bargain
separately or as a single unit?
Training will ensure that employer
and trade union representatives have
a good understanding of the factors
affecting employment relations and
the bargaining process. Most trade
unions have training facilities for their
representatives and there are a
number of independent training
organisations that can provide
employment relations training
separately for management or jointly
with trade union representatives.
Training is particularly important
where a union is newly recognised.
Union representatives – including
learning representatives (ULRs) –
have a right to paid time off for TUC
or union accredited training.
Agreed procedures should meet the
particular requirements of the
organisation and should not be taken
‘off-the-shelf’. Some organisations
have a number of separate
agreements covering various aspects
of union/management relations while
others prefer a single comprehensive
agreement covering both collective
and individual issues. For further
information visit the Acas website at
www.acas.org.uk and the Central
Arbitration Committee website at
www.cac.gov.uk.
The promotion of mutual interests
Relations between management and
union are often conducted on the
basis of pursuing a common interest
in the success of the organisation.
This can take the form of statements
of intent to pursue a cooperative
approach to formal agreements
involving new structures and systems
for consultation and representation.
What is important is the frame of
mind and the way of working rather
than what the agreement might be
called.
5
The TUC offers advice to member
unions on partnership or joint
working issues and has developed
six principles of partnership which
are:
●●
a shared commitment to the
success of the organisation
●●
a commitment by the employer to
employment security in return for
which the union agrees to a higher
level of functional flexibility in the
workplace
●●
a renewed focus on the quality of
working life, giving workers access
to opportunities to improve their
skills, focusing attention on
improving job content and
enriching the quality of work
HOW DOES REPRESENTATION WORK IN PRACTICE?
29
●●
openness and a willingness to
share information. So, for
example, employers will share with
unions and workers their thoughts
about the future when they are at
the ‘glint in the eye’ stage
●●
adding value – unions, workers
and employers must see that
partnership is delivering
measurable improvements
●●
a recognition by both the union
and employer that they each have
different and legitimate interests.
Where attempts are being made to
move from traditional adversarial
employment relations to a joint
working approach there is often
concern on both sides about the
effects of such a change.
For example management may be
concerned about losing the right to
manage and trade unions may worry
about losing their independence and
separate identity. Acas can often
assist in these circumstances by
helping both sides work together to
improve relationships and
organisational effectiveness.
30
REPRESENTATION AT WORK
Notes
1. The 2011 Workplace
Employment Relations Study
(WERS) First Findings
(workplaces with five employees
or more), January 2013
2. Accompaniment and
representation in workplace
discipline and grievance, Acas
Research paper; Saundry, Antcliff
and Jones, October 2008, ISBN:
978-0-9559264-2-6]
Appendix 1: Legal
rights and responsibilities
Right:
Law:
To be
accompanied
●●
Workers have a statutory right to be accompanied by a
fellow worker or trade union official where they are
required or invited by their employer to attend certain
disciplinary or grievance hearings and when they make a
reasonable request to be so accompanied. This right is
additional to any contractual rights.
To be
consulted
●●
Employers are required to consult employee
representatives over planned collective redundancies
and transfers of undertakings.
●●
Employers are required to consult safety representatives
of recognised trade unions.
●●
Employers are required to consult on health and safety
with any employees not in groups covered by trade
union representatives. The employer can choose to
consult them directly or through elected representatives.
●●
Employers with more than 250 employees must include
in their annual report action that has been taken to
inform, consult and involve employees.
●●
Management, employees or their representatives in
European Community scale undertakings (or groups of
undertakings) may trigger the process for setting up a
European Works Council or alternative arrangements for
implementing an information and consultation
procedure.
●●
The Information and Consultation of Employees
Regulations give employees the right to information and
consultation on employment developments and
substantial changes to work organisation. The
Regulations apply to all businesses with 50 or more
employees.
Appendix 1
5
6
31
Right:
Law:
The
recognition
process
●●
Rights of
recognised
trade unions
Recognised trade unions (whether recognised voluntarily or
as a result of the statutory process) have rights to:
●●
The statutory process for recognition applies only to an
independent trade union, or two or more independent
trade unions acting together. Both Acas and the Central
Arbitration Committee (CAC) encourage statutory
recognition cases to be settled voluntarily wherever
possible. If voluntary recognition cannot be agreed the
union can apply to the CAC. The CAC will test the level
of trade union support – if over 50% of the bargaining
unit are members of the union the CAC will normally
declare the union recognised. If not, it will hold a
recognition ballot. For further information visit
www.cac.gov.uk.
Information for collective bargaining purposes and on
health and safety and occupational pension schemes
–– Information on occupational pensions principally
provided by the Occupational Pensions Schemes
(Disclosure of Information) Regulations 1996, but
other provisions on pensions may also apply
–– Consultation on: health and safety at work
redundancies, where it is proposed to dismiss 20 or
more employees at one establishment over a period
of 90 days or less business transfers
–– Paid time off for officials to carry out duties concerned
with negotiations with the employer and training
relevant to those duties
–– Reasonable time off (which need not be paid) for
trade union members during working hours to take
part in the activities of the union
32
REPRESENTATION AT WORK
Right:
Law:
Rights of
recognised
trade unions
●●
Those trade unions recognised by the statutory trade
union recognition process also have legal rights to:
–– Collectively bargain about pay, hours, and holidays –
as a minimum
–– Consultation on training
–– Not to be derecognised for at least three years – does
not apply to voluntary recognition agreements which
are subject purely to agreement of the parties
●●
Collective or ‘Workforce’ agreements may govern the
application of some aspects of the Working Time
Regulations 1998.
6
Appendix 1
33
Appendix 2: Importantchanges
tomakingEmploymentTribunal
claims
Previously, an employee could go
straight to the tribunal service, but
this will change. From 6 April 2014, if
an employee is considering making
an Employment Tribunal claim
against their employer, they should
notify Acas that they intend to submit
a claim.
Details of how and where to do this
are given below.
Acas will, in most circumstances,
offer to assist in settling differences
between employee and employer.
Employers intending to make a
counter-claim against an employee
must follow a similar procedure.
The process for agreeing settlement
is called Early Conciliation. It is
handled by experienced Acas
conciliators and support officers and
is:
34
●●
free of charge
●●
impartial and non-judgmental
●●
confidential
●●
independent of the Employment
Tribunal service
REPRESENTATION AT WORK
●●
offered in addition to existing
conciliation services.
Early Conciliation focuses on
resolving matters on terms that
employee and employer agree.
Early Conciliation may not resolve
matters in every claim. When this is
the case Acas will issue a certificate
that is now required for a claim to be
submitted to an Employment
Tribunal.
From July 2013, employees have
been required to pay a fee to “lodge”
a claim at the Employment Tribunal,
followed by another fee if the claim
progresses to a tribunal hearing. In
some cases, other fees may also
apply. If a claim is successful, the
employee may apply for the costs of
the fees to be covered by the
employer. Some employees,
including those on low incomes, may
be exempt from fees.
Remember, when a claim is lodged
with a tribunal, Acas will continue to
offer conciliation to both sides until
the tribunal makes a judgment and, if
the claim is successful, a remedy
decision (usually financial
compensation) has been made.
To find out more about Early
Conciliation, go to www.acas.org.uk/
earlyconciliation
To find out more about Employment
Tribunal fees, go to www.justice.gov.
uk/tribunals/employment
7
Appendix 2
35
Notes
36
REPRESENTATION AT WORK
Information in this booklet has been revised up to the date of the last
reprint – see date below. For more up-to-date information go to the Acas
website www.acas.org.uk.
Legal information is provided for guidance only and should not be
regarded as an authoritative statement of the law, which can only be
made by reference to the particular circumstances which apply.
It may, therefore, be wise to seek legal advice.
Acas aims to improve organisations and working life through better
employment relations. We provide up-to-date information, independent
advice, high quality training and we work with employers and employees
to solve problems and improve performance.
We are an independent, publicly-funded organisation and many of our
services are free.
June 2014
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East
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06/14
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